Thayer v. Torrey

37 N.J.L. 339 | N.J. | 1875

The opinion of the court was delivered by

Scudder, J.

The first point certified is, whether the certificates of acknowledgment iu the two deeds of conveyance from Samuel W. Torrey and wfife, to Eli Thayer, are sufficient to bar the right of dower of the wife of the grantor.

These acknowledgments state that she was examined separate and apart from her husband.

The act respecting conveyances, (Nix. Dig. 145, § 4,) requires that the acknowledgment of conveyances made by a married woman shall be “on a private examination apart from her husband.”

. Since the case of Den v. Geiger, 4 Halst. 225, it has been received as the true construction of this section, and of the first section of this act, that a certificate of acknowledgment of a deed is good if it shows a substantial, though not a verbal compliance with the act.

In that case there was the same omission in the certificate, that there was a private examination.

It was insisted that the examination must not only be apart from the husband, but apart from all other persons.

But it was answered that as the object of the statute was to protect the wife from the undue influence and control of her husband, it was sufficient if it appeared that the examination was apart from him, and that it did so appear when the officer certified she was examined separate and apart from her husband, without saying that it was a private examination.

The words used in the acknowledgments are equivalent to those given in the statute, and the omission to state that the examination -was private was not a good ground for refusing to accept the deeds under the agreement between the parties.

The mischiefs that would result to titles from any other construction of this statute are fully described in the case of Den v. Geiger, and these are not lessened by a consideration •of the number and qualifications of the officers who have since been authorized to take acknowledgments of deeds.

The next point is, that the two separate deeds of conveyance executed by the plaintiff and wife, to the defendant, are each made subject to a mortgage for $2080; whereas, by the agreement the real estate was to be subject to one mortgage for that amount.

But one of these deeds recites that the mortgage is upon' the lands therein described, and the adjoining premises. It appears in the evidence locating the property, that the adjoining premises are those described in the other deed to the defendant. It was also shown that there was in fact but one mortgage overlapping and covering both parcels of land described in the separate deeds.

These deeds being executed at the same time, between the same parties, and relating to the. same subject matter, to wit, the conveyance of all the lands of the plaintiff at Port Monmouth, should be construed together as parts of the same transaction.

These deeds do not in terms refer to each other, and state that it is the same mortgage which is mentioned in each, but the mortgage named in each, by the amount, is thereby made a part of each deed, and up>on its production show's that it includes the lands described in both deeds, and is the same mortgage for $2080.

This evidence is competent and complete. 2 Phillips’ Ev. 738, &c.

The terms of the agreement are, therefore, fulfilled in this respect, for the payment of the sum of $2080, named as part of the consideration, for the lands, secured by mortgage, will discharge all the lands named in the deeds from the lien of the mortgage.

The apparent error has been caused by making two deeds with parts of the same land in each, instead of conveying all the lands in one deed.

It is also objected that in one of the deeds it is written that the mortgage for $2080 is assumed to be paid by the party of the second part as a part of the consideration money of the deed, and that this binds the defendant personally for the payment, as if his name was signed to the deed; whereas, the agreement is, that the land shall be taken subject to the mortgage, without personal obligation to pay the amount of the mortgage.

The difference is important if the defendant’s construction of the agreement be correct.

This contract, howrever, stipulates that, “said real estate being subject to a mortgage for $2080,” the consideration of $16,080 shall be payable as follow's: “$2080 in said mortgage,” &c.

The mortgage, therefore, is to be paid as part of the consideration, and the land is not merely taken subject to the mortgage. It is in effect an assumption to pay the mortgage in discharge of the vendor’s liability to pay. Instead of paying him the entire consideration money, out of which the mortgage may be paid, so much of the consideration as may be needful is appropriated by the parties for that purpose. The mortgage is charged upon the purchase money, and not upon the land only, by the agreement, and it is rightly so staled in the deed. Tichenor v. Dodd, 3 Green’s Ch. R. 4-54; 1 Hilliard on Mortgages 329; Russel v. Pistor, 3 Seld. 171; Belmont v. Coman, 22 N. Y. 438.

The next point is, that in deed number two there is conveyed no certain estate, said deed containing a reservation, or exception, which may cover all the land granted.

This objection can refer to only a part of the lands included in this deed, which parcel is described as follows:

“Also a strip or piece of land, one hundred feet wide, being fifty feet wide on each side of a line now staked out for a railroad, extending from the east side of said plank road (curving to the right about five hundred and fifty feet) to the south side of said Seabrook avenue; excepting and reserving out of said strip, or piece, so much land as not belonging to the said parties of the first part.”

The expression would have been more accurate if the exception had referred to the right the railroad company had acquired in the strip or piece of land, and the description had been, “all the right, title and interest of the grantor in said strip and piece.”

But such is the obvious intent of the description and exception. It is awkwardly expressed, but means that the strip of land staked out by the raili’oad company is conveyed, excepting the burden imposed by the survey and location of the route of the railway on such land.

The former part of the description is certain, and if there be uncertainty, it is in the exception.

This may avoid the exception, because of the uncertainty, but will avail to convey all the title which the grantor has in the strip of land described. Shep. Touch. 78; 4 Kent’s Com. *468.

The grantee, by the agreement, was to receive all the real' estate owned by the grantor at Port Monmouth, and he conveys all he owns of this strip by the clause above quoted.

The next point certified is, whether the defendant is legally bound to pay the costs of foreclosure, by which the house and lot of land in Red Bank, the title to which was in the name of Mrs. Thayer, was conveyed to the plaintiff. There can be no doubt about this.

By the contract the plaintiff agreed “to take, as the final payment, say $5000, the house and lot in Red Bank, Monmouth county, Yew Jersey, owned by said Thayer, but the title to which now stands in the name of Mary D. Thayer, the said house and lot to be free and clear of all encumbrances.”

There were two mortgages upon this property, which were transferred to the plaintiff under the contract; these the plaintiff was to foreclose, and thus perfect the title to the property, which Torrey was to have free and clear of all encumbrances.

In order to free the property, and make such title as Thayer was bound to give, it was necessary, or most convenient, to foreclose these mortgages, and to this Thayer assented. Torrey really acted in this matter as Thayer’s agent to make him perforin his contract, and the legal expenses of foreclosure are properly chargeable to Thayer.

But the defendant was not in a position to refuse payment of the purchase money, for he knew that all the papers were put in the hands of Wilson in escroto; he made payment of a considerable part of the purchase money after such deposit; lie has been in possession of the lands since the date of the agreement, and still holds possession.

So far as appears in the case, he made no objection to the papers put in escrow until this suit was brought, when these formal objections were first made. His conduct, after the long time that has elapsed since he entered into possession, must be held to be a waiver of all formal exceptions to the title put in the hands of the depositary.

He has been in possession, receiving the benefit of the lands for tour years, and it is too late for him to object and refuse to pay the purchase money. Sugd. V. & P., Vol. I, ch. 8, § 20, &c.

The objection that the deeds do not contain full covenants is not tenable, for the agreement does not cal] for such covenants.

He is only entitled, by its terms, to good and sufficient deeds to convey the title in fee simple. It has been so decided, recently, in the Court of Errors and Appeals. Lounsbery v. Locander, 10 C. E. Green 554.

Upon all the points certified, the Circuit Court is advised that there is no cause shown for a new trial.